State v. Lytsell

67 P.3d 955, 187 Or. App. 169, 2003 Ore. App. LEXIS 496
CourtCourt of Appeals of Oregon
DecidedApril 3, 2003
DocketCR98-1809; A107800
StatusPublished
Cited by6 cases

This text of 67 P.3d 955 (State v. Lytsell) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lytsell, 67 P.3d 955, 187 Or. App. 169, 2003 Ore. App. LEXIS 496 (Or. Ct. App. 2003).

Opinions

[171]*171EDMONDS, P. J.

Defendant has petitioned for reconsideration of our opinion affirming his convictions for robbery and kidnapping. State v. Lytsell, 184 Or App 75, 55 P3d 503 (2002). We allow the petition, withdraw our former opinion, and reverse those convictions.1

We restate the facts as we described them in our previous opinion:

“Defendant and two other men, Sandborn and Clippinger, burglarized the home of the victim, Fornataro, on the evening of January 5, 1998. While the three intruders were inside the house, Fornataro and his son returned home. Fornataro testified that he became suspicious when he noticed that lights were on and that items in the house had been disturbed. He went to check his bedroom and, as he entered, he saw two men. One man was rummaging through a cabinet in the room, and his upper torso was hidden from view by the cabinet’s doors. The other man was standing about seven feet away, holding Fornataro’s handgun in his left hand. As Fornataro entered the room, he asked the two men what they were doing. Startled, the man holding the gun pulled out another gun and pointed it at Fornataro. The gunman then told Fornataro to turn around or he would shoot him. Pressing the gun against Fornataro’s neck, the gunman forced him outside onto the deck. Fornataro testified that, once outside, the gunman ordered him to get down on his knées, but Fornataro refused. The gunman and the second intruder then fled through the backyard and over a fence. Fornataro also saw the profile of a third intruder who left the house through a basement window. After the intruders left, Fornataro called the police.
‘While investigating the crime scene, the police found a pager that belonged to defendant in Fornataro’s backyard. In addition, a police artist drew a composite facial sketch of the gunman from Fornataro’s description. The sketch strongly resembled defendant. The police also conducted three photo throw-downs. In the first throw-down, Fornataro identified another man, rather than defendant, [172]*172as the gunman. That throw-down did not include defendant’s photograph. The second throw-down included defendant’s photograph, and Fornataro identified him as the gunman. In a third throw-down, which also did not include defendant’s photograph, Fornataro commented that the person in one of the photos resembled the gunman, but he told the officer that he was certain that it was not the gunman.
“The police eventually arrested defendant for the charged offenses. Sandborn also was in custody but later escaped; at the time of defendant’s trial, Sandborn had not been apprehended.
“Defendant waived his right to a jury trial, and the case was tried to the court. At trial, defendant admitted that he was one of the burglars but denied being the gunman. He testified that he, Sandborn, and Clippinger were in the bedroom when Fornataro entered. According to defendant, when Fornataro entered, defendant was crouched behind the bed looking underneath it, Clippinger was searching through a cabinet, and Sandborn was standing beside the bed. As soon as Fornataro confronted them, Sandborn pulled the gun out and ordered Fornataro to turn around. Sandborn then ordered Fornataro to lead them outside onto the deck. However, when Fornataro turned around, Clippinger jumped out the bedroom window. Defendant followed Sandborn and Fornataro through the house, but he eventually fled through another bedroom window. Thus, according to defendant, Sandborn was the only person on the deck with Fornataro. After fleeing, defendant and Sandborn went to a nearby house that belonged to Cannon, a friend of defendant’s mother. Defendant’s teenage stepsister, Boyd, was at the house with several of her friends, including Byles. When defendant and Sandborn arrived at Cannon’s house, Boyd let them in and the two men ran down into the basement. Defendant stated that, after cleaning up, he and Sandborn returned upstairs and talked with the girls.
“Fornataro testified that, during his encounter with the gunman, he had carefully studied the gunman’s face for the specific purpose of later identifying him. Then, in open court, he identified defendant as the gunman. Fornataro also described his thoughts during the photo throw-downs. [173]*173He explained that, in the first throw-down, he had identified a man whose facial features were similar to defendant’s, but he told the officer that the person in the picture was thicker in the neck and torso than the gunman. He stated that he had quickly identified defendant as the gunman during the second throw-down, and, in the final throw-down, he noticed a man who looked similar to the gunman but, even at that time, he had been ‘absolutely sure [that] it was not the gunman.’
“Defendant called as a witness the police officer who conducted the first two throw-downs. The officer testified that Fornataro had identified a suspect in 38 seconds during the first throw-down and had identified defendant in 2 minutes and 35 seconds during the second throw-down. Furthermore, according to the officer, Fornataro mentioned during the second throw-down that another man somewhat resembled the gunman.
“Near the end of defendant’s case-in-chief, and after defendant testified, he sought to introduce in evidence hearsay declarations allegedly made by Sandbom that implicated Sandborn as the gunman. Defendant made an offer of proof that included the in-court testimony of three witnesses. Two of the witnesses, Boyd and Byles, testified concerning statements Sandbom allegedly made when he and defendant were at Cannon’s house on the night of January 5. Boyd testified that Sandbom told Boyd and Byles that he had held the gun to Fomataro’s head so that he, defendant, and Clippinger could escape. Byles testified that she heard Sandborn tell the group that Tie had made a guy get down on the ground and held [the gun] up to the guy’s head.’ However, she later testified that she did. not remember Sandbom’s exact words, only that “he said — told the guy to get down — :down to the ground.’ The third witness, Lohr, testified that several months before defendant’s trial, but after defendant had been arrested, Sandborn told her that “he feels bad because [defendant is] going to be doing his time for him.’
“Defendant argued that the declarations were admissible as statements against Sandborn’s penal interest under OEC 804C3XC)1 and that the declarations exonerated defendant of any crimes involving the use of the gun. Defendant contended that the statements were sufficiently corroborated because the two witnesses heard ‘relatively the same [174]*174statement regarding the gun under the same, circumstances.’ Furthermore, defendant contended that the statements were consistent with the events that occurred during the episode and that Sandborn voluntarily made the statements in surroundings in which he felt comfortable. Defendant urged that Sandborn’s comment about defendant doing ‘his time’ was against Sandborn’s penal interest, and that it also corroborated Sandborn’s statements to Byles and Boyd.
“The state conceded that the declarations allegedly made to Byles and Boyd constituted statements against penal interest, but it argued that the declaration that defendant was going to be ‘doing his time’ was not against Sandborn’s penal interest.

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State v. Lytsell
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Bluebook (online)
67 P.3d 955, 187 Or. App. 169, 2003 Ore. App. LEXIS 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lytsell-orctapp-2003.